| Advanced Global Tech., LLC v Sirius Satellite Radio, Inc. |
| 2007 NY Slip Op 07330 [44 AD3d 317] |
| October 2, 2007 |
| Appellate Division, First Department |
| Advanced Global Technology, LLC, Appellant, v SiriusSatellite Radio, Inc., Respondent. |
—[*1] Kramer Levin Naftalis & Frankel LLP, New York (Michael S. Oberman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Karla Moskowitz, J.), entered March 19,2007, dismissing the complaint pursuant to an order which, in an action for tortious interferencewith prospective economic relations, granted the motion of defendant Sirius to dismiss thecomplaint for failure to state a cause of action, unanimously modified, on the law, to the extent ofpermitting plaintiff to replead pursuant to CPLR 3211 (e), and otherwise affirmed, without costs.
The complaint alleges that Sirius operates a subscription-based satellite radio service, andthat plaintiff Advanced Global Technology (AGT) markets receivers designed to receive satelliteradio transmissions from Sirius's only competitor in the satellite radio market, XM. AGT wasdeveloping a business relationship with an electronics company, KRI, involving development ofa receiver for high definition or HD radio broadcasts; KRI is also a primary manufacturer ofsatellite radio receivers for Sirius. Although satellite radio and HD radio do not compete in thesame market, Sirius warned KRI, under penalty of losing Sirius's business, not to do businesswith AGT. As a result, KRI broke off negotiations with AGT. The motion court correctly heldpursuant to CPLR 3211 (a) (7), that these allegations, on their face, show that Sirius'sinterference was neither wrongful nor motivated solely by malice, as opposed to its normaleconomic interest (see Carvel Corp. vNoonan, 3 NY3d 182, 190 [2004]), specifically, that a major facilitator of its business(KRI) not do any manner of business with a major facilitator (AGT) of its sole competitor's (XM)business (see id. at 191-192 [so long as defendant is motivated by legitimate economicself-interest, it should not matter if the parties are, or are not, competitors in same marketplace];cf. Sumitomo Bank of N.Y. Trust Co. v DiBenedetto, 256 AD2d 89 [1998], lv denied93 NY2d 804 [1999] [threats by defendants, town's attorneys, that if a prospective vendordid not withdraw its proposal to town, "its ability to do business thereafter with the Town. . . would be severely compromised," insufficient to sustain claim for tortiousinterference by plaintiff trustee of noteholders where town's liability on notes depended onwhether it was unable to procure contract for type of services provided by vendor]). We notehowever, that to the extent that the court relied on the September 26, 2006 e-mail from KRI toAGT detailing KRI's communications with Sirius as an additional ground for dismissal pursuantto CPLR 3211 (a) (1), it was in error. The underlying e-mail was not otherwise admissible, andthus cannot [*2]serve as documentary evidence whichconclusively establishes a defense (see e.g. Aetna Cas. & Sur. Co. v Island Transp. Corp.,233 AD2d 157 [1996]).
Finally, we find that leave to replead should have been granted (Barclay Arms v BarclayArms Assoc., 182 AD2d 397 [1992]). Concur—Andrias, J.P., Buckley, Catterson,Malone and Kavanagh, JJ. [See 15 Misc 3d 776.]